05-14-00187-CV

ACCEPTED 05-14-00187-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 2/18/2014 12:43:04 AM LISA MATZ CLERK

No. _________

FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 2/18/2014 12:43:04 AM LISA MATZ Clerk

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IN THE COURT OF APPEALS FIFTH JUDICIAL DISTRICT

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In re HERBERT GEARS Relator.

RELATORS Petition for Writ of Mandamus

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ORAL ARGUMENT REQUESTED Scott Phillips Attorney for Relator State Bar No. 24080595 Bryce King Attorney for Relator State Bar No. 24080984 777 Lonesome Dove Trail Suite A HURST, TX 76054 Telephone: (817)281-1600 Facsimile: (817)485-7588 E-mail: contact@alextandy.com

LIST OF PARTIES AND COUNSEL

Relator Herbert Gears Counsel Scott Phillips State Bar No. 24080595 Bryce King State Bar No. 24080984 777 Lonesome Dove Trail, Suite A Hurst, Texas 76054 (817) 281-1600 (817) 485-7588 Fax contact@alextandy.com

Respondent City of Irving, Texas

Counsel Irving City Attorney Charles Anderson 825 W. Irving Blvd. Irving, Tx 75060 (972) 721-2541 (972) 721-2750

Real Parties in Interest Beth Van Duyne

Shanae Jennings

Counsel Irving City Attorney Charles Anderson 825 W. Irving Blvd. Irving, Tx 75060 (972) 721-2541 (972) 721-2750

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Table of Contents
LIST OF PARTIES AND COUNSEL ................................................................... ii Table of Contents.................................................................................................. iii Index of Authorities .............................................................................................. iv Statues ............................................................................................................ iv Cases .............................................................................................................. iv Statement of the Case ............................................................................................ 1 Statement of Jurisdiction........................................................................................ 1 Issues Presented..................................................................................................... 1 Statement of Facts.................................................................................................. 2 Argument............................................................................................................... 3 PROVISIONS OF THE TEXAS TAX CODE ................................................. 3 HERBERT GEARS' CLAIM FOR MANDAMUS RELIEF ............................ 4 DAMAGES FOR RELATOR, HERBERT GEARS ........................................ 6 REQUESTED RELIEF.................................................................................... 7 Prayer .................................................................................................................... 7 Certification........................................................................................................... 8 Appendix ............................................................................................................... 9 Certificate of Service ........................................................................................... 10

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Index of Authorities

Statues V.T.C.A., Election Code Sec. 273.061.............................................1 V.T.C.A., Election Code Sec. 273.063.............................................1 V.T.C.A., Tax Code 11.13.............................................................1, 3, 4 Texas Government Code 22.221.......................................................1 V.T.C.A., Election Code 3.005........................................................6, 7

Cases Hoot v. Brewer, 640 S.W.2d 758 (Tex.App.1982).............................3 Glass v. Smith, 244 S.W.2d 645 (Tex. 1951)......................................5 Cornette v. Aldridge 408 S.W.2d 935 (Civ.App. 1966)......................5 City of Corpus Christi v. Unitarian Church of Corpus Christi 436 S.W.2d 923 (Civ.App. 1968)..................................................................................5

iv Herbert Gears: Writ of Mandamus

Statement of the Case

1. This case arises as an original action for Mandamus relief under V.T.C.A., Election Code Sec. 273.063 and events arising from the city Irving, Dallas county, Texas. 2. Respondents are Shanae Jennings, Secretary of the City of Irving and

Honorable Beth Van Duyne, Mayor of the City of Irving, Dallas County, Texas. 4. Respondents have failed to perform the ministeral act of certifying

Petitioner's tax ordinance in a timely manner to appear on the May 10, 2014 general election ballot in violation of V.T.C.A., Tax Code 11.13(d).

Statement of Jurisdiction
This Court has jurisdiction under Section 22.221 of the Texas Government Code and Section 273.061 of the Texas Election Code.

Issues Presented
The City of Irving has failed to take mandatory ministerial steps as required under the Election and Tax codes sufficient to certify Relator 's proposed ordinance for the upcoming May 10, 2014 ballot.

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Statement of Facts
Relator created a proposal to modify the over-65 property tax exemption for the City of Irving. This proposal was undertaken with intent to have it certified in time to add to the ballot of the May 10th, 2014 city election. The ordinance proposes to allow homeowners over 65 years of age to claim a 100 percent exemption on their city property taxes. To qualify for a position on the ballot it was necessary for Relator to gather signatures. Mr. Gears gathered over 1,000 signatures and submitted them to the city secretary on February 11, 2014. Later that same day the Secretary reported to Relator that he needed 740 valid signatures to certify the petition and that he had gathered 787. Relator was also informed that the Secretary had submitted the certified petition to be an agenda item on the February 20th, 2014 Irving City Council meeting. On or before February 14th, 2014 the Secretary was informed by the city attorney that he believed the content of the petition was improper and that she could not submit it as an agenda item. She was instead instructed to put it on the "work session" agenda instead. This change in scheduling meant the petition would not be considered by the council before the February 28, 2014 election filing deadline.

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Argument
Relator has a clear right to the relief requested herein and clearly demands that right. The Irving City Council had a clear legal duty to perform the act which is the subject of relief herein, and the Respondent refused to perform a ministerial act that the they are required to perform. There is no other adequate remedy at law available, whether through appeal or otherwise, to rectify the improper action or omission complained of herein as time is of the essence.
PROVISIONS OF THE TEXAS TAX CODE

An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion. Hoot v. Brewer, 640 S.W.2d 758, 761 (Tex.App.1982, orig.

proceeding). The Texas Tax code does not give a taxing jurisdiction the ability to refrain from holding an election. This lack of discretion creates the very essence of a ministerial act. The tax code reads in relevant part: "....an individual who is disabled or is 65 or older is entitled to an exemption from taxation by a taxing unit of a portion of the appraised value of his residence homestead if the exemption is adopted either: (2) by a favorable vote of a majority of the qualified voters of the taxing unit at an election called by the governing body of a taxing unit, and the governing body shall call the election on the petition of at least 20 percent of the number of qualified voters who voted in the preceding election of the taxing unit. V.T.C.A., Tax Code 11.13(d) (emphasis added).

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The tax code spells out certain duties to be undertaken when a successful signature petition is submitted. By enacting the tax code the Legislature has set a clear demarcation by leaving it difficult to establish a property tax entity but making it considerably easier to modify it after creation. The petition signature requirement of Section 11.13(d) of the Tax Code for modifying a property tax entity varies from the procedure established by the Texas Constitution for establishing one. The requirements for establishing a property tax jurisdiction are more arduous requiring a percentage of *eligible* voters versus the requirements in the tax code which require a percentage voters who actually voted. The Respondent is now faced with a mandatory ministerial act of which it has thus far refused to perform. 11.13(d)(2) instructs the taxing entity that it shall call the election when enough signatures have been received. V.T.C.A., Tax Code 11.13(d)(2). In the case at bar the city secretary has already certified that sufficient signatures have been received. The city's own agent has certified the petition as meeting standards. Therefore the city has no discretion and the "shall call" language of the statute confers upon the taxing entity a mandatory duty to act.

HERBERT GEARS' CLAIM FOR MANDAMUS RELIEF

A citizen's right to an initiative election called and held, cannot be defeated by the refusal of an entity to perform purely ministerial duties on the ground that in

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their opinion the ordinance would be invalid if adopted. Glass v. Smith, 244 S.W.2d 645 (Tex. 1951). Mandamus is primarily a means of compelling the performance of purely ministerial duties. Cornette v. Aldridge 408 S.W.2d 935 (Civ.App. 1966). Where a city itself or by and through its commissions or

agencies, in its construction of law, deprives a citizen of an unquestionable legal right and there is no other adequate remedy, a court having power to issue mandamus may review the matter. City of Corpus Christi v. Unitarian Church of Corpus Christi 436 S.W.2d 923 (Civ.App. 1968). It is possible the City Council may have public policy, content, wording, or revenue issues with this proposal. However as stated by the Texas Supreme Court, such concerns are not grounds for refusing to certify a properly filed petition at this stage of adoption. Neither can any discretion be found in V.T.C.A Tax Code 11.13(d)(2). Petitioner further asserts he is entitled to mandamus relief as he has no adequate remedy on appeal. Given the approaching deadlines for certifying

proposals for the May 10th ballot, any delays on the part of the City enhance the risk that Petitioner will not be certified in time to be on the ballot. In fact before the city attorney acted, the initiative was on track to be presented to city council and certified with ample time to spare. It was only through the unauthorized at law acts of city council and staff that the petition has not yet been presented and is in
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danger. Time is certainly of the essence. Relator has a clear right to the relief requested herein and clearly demands that right. The City Secretary and City Council had a clear legal duty to perform the act which is the subject of relief herein, and refused to perform a ministerial act that they were required to perform. There is no other adequate remedy at law available, whether through appeal or otherwise, to rectify the improper action or omission complained of herein.

DAMAGES FOR RELATOR, HERBERT GEARS

As a direct and proximate result of the occurrence made the basis of this lawsuit, Relator Herbert Gears, has been caused to suffer irreparable harm and violations of his and his petitioner's first amendment rights. To wit, the City's denial if allowed to stand will act as an impediment to the fundamental rights of Petitioner's and all his signatories to petition the government. If the valid

signatures gathered in this petition are not used now they will become moot for petition purposes after the City's next election in May as the types and number of signatures required to re-certify for the ballot will change. Should Petitioner wish to petition the City again he will be required to start the process over again and incur additional time and expense gathering additional petition signatures.

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REQUESTED RELIEF

The damages suffered by Relator can be remedied by a timely issued Writ of Mandamus, however time is of the essence. Section 3.005 of the Texas Election Code reads as follows: A uniform election date other than the date of the general election for state and county officers, the election shall be ordered not later than the 71st day before election day. V.T.C.A., Election Code 3.005(c)(2) (emphasis added). City elections are currently scheduled for May 10th, 2014. Relator calculates that the 71 day deadline to certify for this election is February 28th, 2014, leaving at best ten calendar days from the date of this filing for the City to comply with any orders from this Court. For the above reasons, Petitioner prays for timely Mandamus relief that will force the Irving City Council to add Petitioner's proposal to the May 10th ballot in a manner that complies with the Texas Open Meetings Act and for such other and further relief to which Relator may be entitled.

Prayer
Relator prays that this Court issue a writ of mandamus commanding Respondent and real parties in interest to certify Relator's ballot petition in a timely manner as qualify for listing on the May 10, 2014 election ballot, and for such other and further relief to which Relator may be entitled.

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Respectfully submitted,

By: Scott Phillips Texas Bar No. 24080595 Bryce King Texas Bar No. 24080984 777 Lonesome Dove Trail Suite A HURST, TX 76054 Tel. (817) 281-1600 Fax. (817) 485-7588 E-mail contact@alextandy.com Attorney for Plaintiff Herb Gears

Certification
I hereby certify that I have reviewed the above Petition for Writ of Mandamus and have concluded that every factual statement in the said petition is supported by competent evidence included in the appendix or record.

Scott Phillips

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Appendix

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Certificate of Service
A copy of this notice is being filed with the appellate clerk in accordance with rule 25.1(e) of the Texas Rules of Civil Procedure. I certify that a true copy of this Petition for Writ of Mandamus was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or the attorney for such party indicated below by personal delivery.

Scott Phillips Attorney for Relator 777 Lonesome Dove Trail Suite A HURST, TX 76054 Tel. (817) 281-1600 Fax. (817) 485-7588 E-mail contact@alextandy.com Attorney for Plaintiff Herb Gears

Attorney for Hon. Beth Van Duyne, as Mayor of City of Irving Charles Anderson 825 W. Irving Blvd. Irving, Texas 75060 Telephone: (972) 721-2541 Fax: (972) 721-2750

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